This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2012AP1653

Cir. Ct. No.2010CV981

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT II

The Lazy Susan, Inc. and Sherry Menacher,

Plaintiffs-Appellants,

v.

Emmy’s LLC, Wave Management, Inc. and Badger Mutual

Insurance Company,

Defendants-Respondents.

APPEAL
from orders of the circuit court for Ozaukee County:Sandy
A. Williams, Judge.Affirmed.

Before
Neubauer, P.J., Reilly and Gundrum, JJ.

¶1PER CURIAM. The Lazy Susan, Inc., and Sherry
Menacher (collectively “Lazy Susan”) appeal from an order dismissing their case
with prejudice as a sanction for failure to comply with court orders and the
denial of their motion for reconsideration.For the reasons discussed below, we affirm.

¶2In November 2010, Lazy Susan filed an action against Emmy’s
LLC and Wave Management, Inc. (collectively “Wave Management”) relating to a
commercial lease dispute.Approximately
one year later, Wave Management served Lazy Susan with its first set of
interrogatories and request for production of documents.Lazy Susan’s responses to those discovery
requests were due December 21, 2011.It
failed to meet this deadline.

¶3Wave Management subsequently filed a motion to compel
discovery.Following a hearing on the
motion, the circuit court ordered Lazy Susan to serve responses to the
outstanding discovery requests by April 5, 2012.[1]The court also issued a scheduling order
requiring, among other things, that Lazy Susan file its witness list by April
23, 2012.Again, Lazy Susan failed to
meet these deadlines.

¶4Wave Management next filed a motion to dismiss the case for
failure to prosecute.At the hearing on
that motion, the circuit court observed that Lazy Susan had not provided a
legitimate reason for why it had not complied with the April 5 deadline
regarding the outstanding discovery requests.Likewise, it noted that Lazy Susan had not offered an explanation for
why it had not complied with the April 23 deadline regarding its witness
list.

¶5Accordingly, the circuit court entered a written order
granting Wave Management’s motion and dismissing the matter with
prejudice.Thereafter, Lazy Susan filed
a motion for reconsideration, which the court denied on the ground that no new
arguments had been presented.This
appeal follows.

¶8On appeal, Lazy Susan contends that the circuit court erred
in dismissing its case with prejudice and denying its motion for
reconsideration.It submits that its
failure to comply with court orders was both justified and caused by excusable
neglect.Primarily, it cites the
following reasons for its noncompliance:(1) Menacher’s personal bankruptcy, (2) the general disarray
of the records, and (3) an insurance company’s motion for stay and
bifurcation followed by a motion to declare there was no insurance coverage.[2]

¶9Like the circuit court, we are not persuaded that Lazy
Susan’s excuses amount to clear and justifiable excuses or excusable
neglect.As noted, Lazy Susan filed its
action in November 2010.By then, it
needed to know what its case was comprised of in order to proceed.Thus, regardless of Menacher’s personal
bankruptcy and the condition of the records, Lazy Susan’s failure to serve
responses to discovery requests nearly a year and one-half later, as required
by the court, was egregious.

¶10As for the insurance company’s motions, there was no reason to
believe that they prevented the case from moving forward through
discovery.After all, the circuit court
issued an order in October 2011 requiring the insurance company to defend its
insured, Wave Management, and holding in abeyance its remaining requests.Even if that were not the case, it cannot be
credibly argued that Lazy Susan’s subjective (and erroneous) belief that there
were pending insurance coverage issues meant that it was free to ignore subsequently
issued court orders.

¶11 In the end, the excuses offered by Lazy Susan do not justify
its failure to comply with court orders.Consequently, we are satisfied that the circuit court properly exercised
its discretion in dismissing the case with prejudice and denying the motion for
reconsideration.

By the Court.—Orders affirmed.

This opinion will not be
published.SeeWis. Stat. Rule
809.23(1)(b)5. (2011-12).

[1] There
was no misunderstanding or pressure with respect to the April 5, 2012
deadline.Counsel for Lazy Susan
confirmed to the circuit court that he could serve responses to the outstanding
discovery requests by then.

[2] Additionally,
Lazy Susan asserts that (1) it eventually (albeit untimely) provided discovery
to the circuit court on CD, (2) Wave Management suffered no prejudice from the
delays, (3) Wave Management failed to provide it with a witness list (which was
not due until July 23, 2012), (4) Wave Management refused to allow third
parties to remove equipment from the leased premises, (5) counsel for Wave
Management refused Lazy Susan’s invitation to inspect records, (6) counsel for
the insurance company failed to comply with a local rule regarding discovery
motions, and (7) Lazy Susan failed to seek extensions because it was in the
process of trying to produce the required documents.The problem with these arguments is that none
of them—except the unsupported contention that Lazy Susan failed to seek
extensions because it was in the process of trying to produce the required
documents—relates to Lazy Susan’s repeated failure to comply with court orders.